Myrie v. Attorney Gen. U.S.

• Decision Date: 28 April 2017
• Docket Number: No. 16-1599,16-1599
• Citation: 855 F.3d 509
• Parties: Luis Antonio Dutton MYRIE, Petitioner v. The ATTORNEY GENERAL UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

855 F.3d 509

Luis Antonio Dutton MYRIE, Petitioner

v.The ATTORNEY GENERAL UNITED STATES of America, Respondent

No. 16-1599

United States Court of Appeals, Third Circuit.

Argued November 16, 2016

Opinion filed: April 28, 2017

Nathanael P. Kibler (Argued), Baker Donelson Bearman Caldwell & Berkowitz, 265 Brookview Centre Way, Suite 600, Knoxville, TN 37828, Counsel for Petitioner

Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Bernard A. Joseph, Senior Litigation Counsel, Jason Wisecup, Erica B. Miles (Argued), United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: AMBRO, CHAGARES, and FUENTES, Circuit Judges

OPINION OF THE COURT

AMBRO, Circuit Judge

Petitioner Luis Antonio Dutton-Myrie petitions for review of a ruling by the Board of Immigration Appeals ("BIA" or "Board") dismissing his appeal of the decision by an Immigration Judge ("IJ") that he is ineligible for deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85 ("CAT"). Dutton-Myrie contends that the Board erred in affirming the IJ's conclusion that the government of Panama would not be willfully blind to torturous acts against him and, in any event, stated incorrectly what constitutes acquiescence to torture by Panamanian officials. He also asserts that the IJ is biased against him and this, among other things, violated his due process rights.

We conclude that the BIA did not apply the correct legal standard under the CAT and should have reviewed the IJ's application of this standard de novo . We remand on these grounds. While we reserve judgment on Dutton-Myrie's due process claim, we express concern that the IJ's opinion suggests such frustration with this case (which appears to have nine lives) that the Board should consider assigning it to a new IJ if further fact-finding is necessary.

I. Facts and Procedural History

a. Dutton–Myrie's background

Dutton-Myrie is a native and citizen of Panama who came to the United States on a visitor's visa in 1991 and remained after his visa expired six months later. In the early 1990s he pled guilty to cocaine-related offenses and criminal attempt to commit escape.

In 1998 the former Immigration and Naturalization Service charged Dutton-Myrie as removable for overstaying his visa and as an alien convicted of an aggravated felony for trafficking in a controlled substance. An IJ sustained the charges against him and ordered him removed to Panama. Government agents began the process of deporting Dutton-Myrie, but he de-boarded the plane undetected before it left the United States and continued to live in this country without legal status.

The Government apprehended Dutton-Myrie in 2005 and deported him to Panama. A few days after he returned, the record indicates that a group of men came to his ex-girlfriend's apartment and stabbed him in the neck. He fled the country and re-entered the United States through its southern border.

The Government apprehended Dutton-Myrie a second time in 2007 and charged him with illegal re-entry. He ultimately pled guilty to these charges and was sentenced to time served.¹ The Government then transferred him to the custody of Immigration and Customs Enforcement ("ICE").

b. Removal proceedings before the Immigration Judge

The United States Department of Homeland Security reinstated in 2012 the final order of removal against Dutton-Myrie. However, an asylum officer found he expressed a reasonable fear of returning to Panama and referred him to an IJ. Dutton-Myrie filed an application for deferral of removal under the CAT based on his claim that members of the Mara Salvatrucha ("MS-13") gang would likely torture him if he returned to Panama.

Dutton-Myrie represented himself at the hearing on his application. He testified that his uncle, Reginaldo, and his brother, Ricardo, started a gang called La Banda del Norte in the 1980s in his hometown of Colón, Panama. Over time the gang spread beyond Colón, entering into feuds with rival gangs, including the MS-13. Dutton-Myrie claimed that members of the Panamanian MS-13 were responsible for beating Reginaldo to death in Brooklyn, New York, in 1992, and for murdering Ricardo in Panama four years later.

According to Dutton-Myrie, the MS-13 targeted male family members living in Panama because of their kinship ties to Reginaldo and Ricardo: in 1995, Dutton-Myrie's brother Jose was drowned; his brother Nelson was beaten and stabbed in 1997; his brother Arnaldo was shot in 2001, was attacked again in 2004, and died in 2009 after members of the MS-13 shot him 21 times; and in 2010 his brother Regelio was shot twice but survived.

Dutton-Myrie further testified that gang members attacked him immediately after he arrived in Panama in 2005. A former girlfriend in Panama submitted an affidavit attesting that she called the police to report the attack, but no officer came to investigate. Dutton-Myrie then fled the country. He stated that he believed the police were either bribed by the MS-13 or were unwilling to protect his family, and he supported this conclusion with record evidence of his brothers' deaths and testimonial evidence that the investigations into the murders and violent attacks remained unresolved. Dutton-Myrie also submitted a letter from the Panamanian Department of Public Safety confirming the deaths of his family members, stating that his surviving family members receive death threats, and referencing a complaint that his mother made reporting threats to her children's lives.

The IJ found Dutton-Myrie to be credible, accepting as true his testimony that the gang had killed several of his family members and that police had not prosecuted anyone for these crimes. Though expressing "concerns for [the] safety" of Dutton-Myrie if he were removed to Panama, the IJ nonetheless determined that he failed to establish that Panamanian officials would consent or acquiesce to the harm he feared and thus denied his CAT claim.

c. The BIA's first ruling

Dutton-Myrie appealed the IJ's conclusion that he was not eligible for CAT relief. The BIA affirmed, holding that "[t]he evidence d[id] not establish that the Panamanian government acquiesces to torture by gangs, as the term has been interpreted by the Third Circuit, but rather shows that it has been actively trying to combat them."

d. The Government requests remand

Dutton-Myrie petitioned our Court for review. The Attorney General filed a motion to remand to "allow the Board to reconsider and/or clarify the bases for its ... decision in light of Pieschacon-Villegas v. Att'y Gen. of the U.S. , 671 F.3d 303, 311-14 (3d Cir. 2011)." We granted this motion and remanded the case to the BIA, whereupon it vacated its first decision and remanded to the IJ.

e. The Immigration Judge's second decision and the BIA's second ruling

The IJ issued a second ruling in 2013. He again denied CAT relief. Though the IJ found that Dutton-Myrie's "credibility [was] not at issue," CAT protection remained unavailable because he determined Dutton-Myrie had not established that the Panamanian government "permit[ted] a certain level of gang violence in order to inflict severe pain or suffering on him." On appeal, Dutton-Myrie argued the IJ applied an erroneous legal standard for acquiescence by requiring him to show the Panamanian government intended that he be tortured.

The Board sustained the appeal. It agreed that the specific intent requirement applies only to those who commit acts of torture, whereas an applicant need only show willful blindness to establish acquiescence to the torture by others. It also noted that the IJ failed to consider evidence relevant to the likelihood of future harm. The Board therefore found it "necessary to again remand [for the IJ] to reassess whether [Dutton-Myrie] established acquiescence" despite the Panamanian government's opposition to the MS-13, as well as "evidence of future torture."

f. The IJ's third decision and the Board's remand

The IJ denied relief a third time in 2014. There he relied on independent research he put into evidence, including a 2011 Panama Crime and Safety Report and an article from Panama Digest , which he found suggested the MS-13 gang was a "recent phenomenon" in Panama. The IJ further deviated from his prior two findings of credibility, stating instead that the evidence cast "serious doubt on the veracity of [Dutton-Myrie]'s claim that MS-13 lay behind the devastation to his family." The IJ discounted the letter from the Department of Public Safety in Panama as unverified. He then concluded without discussion that the evidence was insufficient to establish willful blindness.

Dutton-Myrie appealed, and once again the Board ordered a remand to the IJ for further proceedings. It held that he erred in (1) questioning Dutton-Myrie's credibility despite finding him credible in prior proceedings, (2) failing to notify Dutton-Myrie that further corroboration was required, and (3) relying on an internet search that was not part of the record of proceedings. The Board directed the IJ on remand "again [to] determine whether [Dutton-Myrie] established acquiescence, as well as evidence of the likelihood of future torture."

g. The IJ's fourth decision and the Board's affirmance

On remand, the IJ requested that both parties respond to the country conditions evidence the IJ introduced previously. The record contains notice of a hearing, yet the BIA cannot locate a transcript of the hearing and the Government now contests Dutton-Myrie's claim that it occurred. In his fourth decision, the IJ concluded that there was no rebuttal of the evidence suggesting that the MS-13 had only recently begun to infiltrate Panama and opined that he was "wholly unconvinced" that the group had attacked Dutton-Myrie and his brothers. Yet the IJ specifically stepped back from any...